Minor Party Legal Challenges Against Top-Two Primary Proceed

A hearing on a motion to dismiss in the Rubin v. Bowen matter Monday morning addressed the minor parties’ lawsuit challenging Proposition 14 in Alameda Superior Court over two main allegations: (1) California’s non-partisan Top-Two Primary interferes with the minor parties “Constitutional right” to appear on the general election ballot, and (2) that the new primary system was adopted with the purpose of discriminating against minor parties.

Below is a copy of the “tentative ruling” that Judge Appel issued on Friday evening. It had good news and bad news for both sides, though it may not have all that much significance for the final ruling.

The judge indicated that he planned to dismiss the Second Cause of Action, alleging that Proposition 14 was adopted for discriminatory purposes, with prejudice.

But, on the First Cause of Action, which claims that Proposition 14 interferes with the minor parties’ constitutional “right” to access the general election ballot, the judge was less willing to dismiss as a matter of law. The ruling does not mean the minor parties won the case. Rather, it means that the minor-party Plaintiffs may pursue their claim.

Defenders of the Top-Two primary, including the Independent Voter Project, would then file an answer to the complaint, both sides would conduct any discovery that seems warranted, and then, unless there was a settlement or a successful motion for summary judgement, go to trial in February 2014.

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The judge’s tentative ruling indicated his belief that, at this early pleading stage, he could not say as a matter of law whether letting the minor party candidates participate in a June primary is sufficiently close to the general election to serve as an adequate alternative to allowing the minor parties to participate in the general election.

He felt that the Ninth Circuit failed to fully engage in the appropriate balancing analysis on this issue in upholding Washington’s top-two system, upon which the California primary was drafted. And he said there was not adequate evidence that it was necessary to restrict the number of candidates to two.

Monday morning’s arguments lasted an hour and a half. The judge started off by indicating that the tentative ruling was, in his view, completely wide-open; that he still had lots of questions, and was looking forward to the argument, but that he wanted to at least put something on paper to help guide the discussion.

At one point, Judge Appel expressed the view that defendant and interveners seemed to be arguing that “less is more” at the general, and candidates at the general election should be limited. But it seemed to him that (within reason) courts should favor more viewpoints on the ballot. He said that he understood that the purpose of elections was to elect officeholders, but it seemed to him that the expressive value of a political campaign was really the most important part of the electoral process.

He asked Plaintiffs’ counsel whether there was any cases that said that. Plaintiffs’ counsel said he didn’t have one, at which point the Defendant’s council got up and told the judge that the Supreme Court had explicitly said the exact opposite and gave him a case cite.

At another point, Judge Appel seemed to grasp that an old case, Anderson v. Celebrezze (which held that an Ohio candidate filing deadline for independent candidates in March was too far away from the November election for them to react and participate in the ‘significant political arena’), was distinguishable on its facts. The differences with the current case were argued extensively in the Defendant’s briefing, but the judge continued to return to Anderson over and over for points of law that he believed were applicable.

At the end of the argument, Plaintiffs’ counsel asked for the opportunity to file a letter brief listing cases addressing the expressive value of voting and the impact on voter choice. The judge gave them until next Tuesday.

In light of all of this, it’s difficult to say where Judge Appel will come down.Supplemental briefs will be filed next Tuesday. At that point the judge will have 90 days to rule.

About the Author

Chad Peace

Chad Peace is president of IVC Media LLC, a partner at the law firm of Peace & Shea LLP, and legal strategist for the Independent Voter Project.
Chad developed the voter outreach strategy for California’s successful nonpartisan primary initiative and conducted the campaign to draft a current United States Senator to run for office. Most recently, he authored the City of San Diego’s Measure K and manages voter outreach efforts in local, statewide, and national efforts, including a major candidate for president of the United States.
In 2017, Chad was recognized by the American Association of Political Consultants as a "40 under 40" political professional to watch.